CO882-(6-8) — Page 426

PUBLIC RECORD OFFICE

Reference :-

C.O. 882

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ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

PUBLIC RECORD OFFICE, LONDON

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"On the arrival of the Ashley" (one of the vessels referred to in the covering despatch) at Hong Kong the entire crew, when they found that the ship was ordered to Japan, refused duty. The master consulted the harbour master there, who at first proposed to imprison them under the Merchant Shipping Act for refusal of duty, but on consultation with the Attorney-General, as the master informs me, came to the conclusion that the carrying of coal in belligerent waters was illegal trading, and that he had no power to imprison the men. Eventually the crew, with the exception of five, returned to duty, the five who refused to do so being discharged. The master also told me that the matter had been referred to the Home Authorities.

A number of colliers are expected shortly with, I believe, about 100,000 tons of coal for Sasebo or this port, and I shall probably have trouble in their case, as the crews will doubtless be advised to the same effect as those now in port.

I should imagine, however, that once the vessel discharges or begins to discharge her cargo there can be no question of contraband, and the crews may be dealt with in the ordinary way, should they refuse duty, but the matter would appear to be different should a ship load a return cargo or pass through Nagasaki en route for another port without discharging, and I should be very glad of definite instructions."

Enclosure 2 in No. 39.

Marine Department, 7, Whitehall Gardens, London, S.W.,

September 26, 1904.

SIR,

I AM directed by the Board of Trade to acknowledge the receipt of your letter of the 29th ultimo, forwarding a copy of a despatch from His Majesty's Minister at Tokio in regard to the refusal of the crews of three British ships arrived at Nagasaki with cargoes of coal to work, on the ground that the vessels were carrying contraband of war.

In reply the Board desire me to state, for the information of the Marquess of Lansdowne, that they have consulted their Solicitor in the matter, and that they are not prepared at this juncture to express an opinion on the question in what way, if any, the carrying of contraband affects the agreement between the master and the crew of a vessel, and in particular whether a crew is justified in refusing to proceed with a vessel in fulfilment of the terms of the agreement on the ground that the vessel is carrying contraband of war.

I am, however, to invite his Lordship's attention to the case of the "Cheltenham " (a report of which appeared in the "Times" of the 10th instant) in which Mr. Alder- man Smallman at the Guildhall Police Court, upheld a claim for damages made by a member of the crew of the captured vessel, on the ground that the owners should have informed the crew that the vessel was carrying contraband of war, and that they did not, in fact, so inform them.

The Board understand that the owners of the " Cheltenham " have given notice of appeal against the decision, and they also believe that in the case of the "Ras Bera," to which Sir C. Macdonald refers, the Seamen's Union are contemplating the question of sueing the owners for-the wages of the seamen who were discharged, and whose wages were forfeited by order of the Naval Court held at Yokohama.

Before long, therefore, an authoritative legal decision will in all probability be given on the questions raised by Sir C. Macdonald, and I am to suggest, for the consideration of Lord Lansdowne, that Sir C. Macdonald might be informed that though the Board are unable at the present moment to lay down any general rules for the guidance of Consuls and others in these cases, they will not lose sight of the matter, and when a definite ruling be given by a Court of Law in this country they will not fail to take the necessary steps to have it brought to his notice.

I am, however, to suggest, for the consideration of Lord Lansdowne, that in the. meantime His Majesty's Consuls might be instructed that whenever cases similar to that of the "Ras Bera " arise, they should deal with them by convening a Naval Court. The matter would thus be dealt with by a competent tribunal, and the Consul would not incur any responsibility.. If His Lordship should also consider it advisable that

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Consuls should be informed either confidentially or otherwise as to the legal position of the question so far as it can be determined, I am to suggest, for his consideration, that it might be well to submit a case for the opinion of the Law Officers of the Crown.

I have, &c.,

The Under Secretary of State,

Foreign Office.

36945

SIR,

No. 40.

HERBERT JEKYLL.

COLONIAL OFFICE to FOREIGN OFFICE.

[Copy to Governor, Secret, and Board of Trade, November 8, 1904. L.F.] [Answered by No. 41.]

Downing Street, October 28, 1904.

I AM directed by Mr. Secretary Lyttelton to forward to you to be laid before the Marquess of Lansdowne copies of correspondence* with the Board of Trade with regard to the refusal of the crew of the S.S. "Bawtry " to proceed from Hong Kong to Vladivostock with a cargo of coal.

2. The case of the S.S. "Inkum," to which reference is made, was of a similar character, the crew having refused to proceed from Hong Kong to Japan with a cargo of coal.

3. Mr. Lyttelton would be glad to learn whether the Marquess of Lansdowne referred this matter to the Law Officers of the Crown, as suggested in the Board of Trade letter of September 26th. If so, he would be glad to be informed as soon as possible what opinion the Law Officers have given.

4. If they have not been consulted yet, Mr. Lyttelton would suggest that the matter should be put before them without delay, as it is probable that such cases will recur, and it is very desirable that the Magistrates before whom the cases will come should be in possession of the highest legal opinion on the subject.

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SIR,

No. 41.

I am, &c.,

H. BERTRAM COX.

FOREIGN OFFICE to COLONIAL OFFICE. (Received November 2, 1904.)

[Copy to Governor, Secret, and Board of Trade, November 8, 1904. L.F.]

Foreign Office, November 1, 1904.

I AM directed by the Marquess of Lansdowne to acknowledge the receipt of your letter of the 28th ultimo, enclosing copies of correspondence with the Board of Trade with regard to the refusal of the crew of the S.S. "Bawtry" to proceed from Hong Kong to Vladivostock with a cargo of coal.

I am to state, in reply, for the information of Mr. Secretary Lyttelton, that His Lordship acted on the suggestion contained in the letter of September 26th last from the Board of Trade, and issued a Circular to His Majesty's Consular Officers at all ports, directing them to summon a Naval Court, if such a case as the one now under consideration arose in their Consular district. A copy of the Circular is enclosed herewith.

• Nos. 38 and 39.

† Enclosure 2 in No. 39.

‡ No. 40.